Thursday, March 13, 2008

The Ongoing Battle Over Passenger Rights

In the United States, 2007 saw some notable contributions to the ongoing squabble over passenger rights on airlines. At the federal level, the Airline Passenger Bill of Rights Act was introduced. That act would have required airlines to provide food, water, and adequate restroom facilities to passengers in the case of delays. More controversially, it would have provided a right to deplane three hours after the aircraft's door is closed.

The latter proposal drew strong criticism from the airlines as being a catalyst for further delays. Should a passenger exercise the right to deplane, the aircraft would have to taxi back to the terminal, lose its position in line for takeoff, and further impede passenger traffic at its destination. The bill was merged into the much larger Aviation Investment and Modernization Act which, since its introduction in the Senate in August of 2007, has gone nowhere. The House has passed its own version of the omnibus legislation which inter alia reduces the categorical requirements of the original Passenger Bill of Rights Act, but still requires airlines to provide an Emergency Contingency Plan to the Secretary of Transportation which details how they will provide basic services and an option to deplane after "excessive delays." No substantial action has been taken by the Senate on the House version.

In the meantime, while federal legislation stalled, the State of New York took matters into its own hands by requiring airlines to provide amenities to customers during delays and establishing the Office of the Airline Consumer Advocate to monitor compliance. Under the law-which went into effect on January 1, 2008-air carriers are required to provide contact information for the Consumer Advocate to customers and may be hit with a fine as stiff as $1,000 per passenger for flights which do not comply. Citing preemption under the Airline Deregulation Act (ADA), the Air Transport Association of America (ATAA) filed suit in federal district court to invalidate the legislation. The Association's efforts were thwarted, however. The court reasoned that there is always a strong presumption against preemption except in instances where it is explicitly stated in the federal legislation. The court read the ADA's explicit requirement that "a State may not enact a law.related to the.service of an air carrier" as limited to matters of competition whereas the New York law was concerned with services for health and safety. Since health and safety fall within a State's historic police powers, the court did not find that preemption had occurred. In addition, the court further found that preempting the New York law would not advance the purposes of the ADA and that any concerns over diverse regulation were marginal at best.

Matters appeared bleak for the airlines. Following New York's victory, eleven states-including California, Pennsylvania, and Washington-have contemplated passing their own bill of rights for passengers. Last week, however, the airlines appeared to catch a break as the Second Circuit Court of Appeals seemed ready (based on the tone of judicial questioning, at least) to overrule the lower court and strike down the New York law on the previously cited preemption grounds. While a final ruling has not yet come down, the three-judge panel expressed concerns about a multitude of regulations popping up across the country. While their comments were not unsympathetic to the pro-passenger rights position, their focus on a need for uniformity and worries about preemption are likely to tip the balance toward the airlines. Not willing to see this as a total defeat, pro-passenger rights advocates are hoping that a reversal by the appellate court will spur federal lawmakers to pass their still-dormant passenger-friendly legislation.

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